FISA Is Up For Renewal: Will The NSA Be Forced To Reveal Its Warrantless Wiretapping Campaign And Why The Agency Spies On Americans?

A helicopter provides a bird's-eye view of the National Security Agency headquarters at Fort Meade, Md., on Jan. 29, 2010.
REUTERS

It’s pretty much an open secret that the U.S. government spies on American citizens.

However, the number of people under surveillance, the specific information being collected, the location of its storage, and the agencies and officials that can access these data has never been publicly revealed. What we do know is that, since shortly after the Sept. 11, 2001, terrorist attacks on the U.S., an unknowable -- probably, an unfathomable -- number of Americans have had their email and phone conversations inadvertently (or not) tapped by the National Security Agency, or NSA, as a result of an effort to monitor the communication of individuals with known or suspected links to terrorist groups.

The law allowing this controversial activity will expire at the end of this year unless the U.S. Congress renews it in the next few days. And there is little doubt that lawmakers won’t reapprove the legislation. Known as the FISA Amendments Act, the bill was easily reauthorized by the House of Representatives in September.

In the Senate, however, the measure is facing at least a bit of turbulence. A small group of senators has placed a hold on the bill to offer a handful of new amendments intended to add greater transparency to a program that is opaque even to many elected officials. Still, this group has promised to remove the hold even if it doesn’t get its way so as not to interfere with the supposed needs of law enforcement. Whatever happens to these proposed changes -- and it is more than likely they will be defeated -- most observers believe the NSA surveillance effort next year and in the immediate future will not be impinged substantially by any congressional action.

Technically, under the program rules, only conversations focusing on “foreign intelligence information” can be monitored. But the term is so vague that it could encapsulate data that does not directly deal with terrorism or even national security, said Trevor Timm, an activist and blogger with the nonprofit Electronic Frontier Foundation, or EFF.

“You could be talking about politics with your uncle in Russia or Israel and fall under the definition, for example,” Timm said.

The American Civil Liberties Union, or ACLU, claims that, every day, the NSA intercepts and stores about 1.7 billion emails, phone calls, and text messages. Enacted in 1978, the original law, designed to protect Americans against such government surveillance, was known as the Foreign Intelligence Surveillance Act, or FISA. The legislation grew out of revelations that the Nixon administration had used federal resources to spy on activists and perceived internal enemies.

FISA was amended in 2008 by Congress to retroactively legalize the Bush administration’s warrantless wiretapping program that he initiated in the months after 9/11. The FISA Amendments Act passed with the support of then-Sen. Barack Obama, D-Ill., who later promised to reform the program as president. However, the Obama administration has apparently made few changes to it. In fact, these days the administration argues that even confirming the existence of the program is a risk to U.S. national security.

Everyone Is A Potential Target

Former President George W. Bush in 2001 signed a secret memo granting the NSA the broad powers to engage in the warrantless surveillance of overseas terrorist targets, even if the private conversations, emails, faxes, and other communications of Americans in the U.S. were swept up in this surveillance web. Under the Bush plan, the Foreign Intelligence Surveillance Court, a little-known panel created under FISA that approves surveillance warrants by federal police agencies against suspected foreign intelligence agents inside the U.S., was to a large degree neutered -- and oversight of overseas eavesdropping campaigns was minimized.

When this program came to light, some years after it was implemented, civil-liberties watchdogs condemned it, claiming that eavesdropping on Americans without a warrant, even if the primary target is someone overseas, was a clear violation of the protection against illegal search and seizure guaranteed under the Fourth Amendment of the U.S. Constitution.

That accusation would only become stronger over time, after reports emerged that telecommunications companies, such as AT&T Inc. (NYSE:T), were providing the Bush administration with hoards of both domestic and international electronic communications data -- all without probable cause or a warrant.

Shortly after the New York Times broke the story about the surveillance program in 2005, Mark Klein, a retired AT&T technician, submitted an affidavit for the EFF position and against the government position in a class-action lawsuit centered on the program. Klein alleged AT&T gave the NSA access to its entire database of communications records, including information on everyone with whom its customers had corresponded.

Last year, William Binney, a former NSA cryptomathematician, claimed that virtually every person in the U.S. -- including members of Congress -- are under some type of surveillance. And Binney said the FBI has access to the collected data.

“This can happen to anyone if they become a target for whatever reason,” Binney said in an interview Russia Today posted on YouTube this month. “If they are targeted by the government, the government can go in -- or the FBI or other agencies of the government -- can go into that database and pull all that data that has been collected on them over the years, and ... retroactively analyze everything they have done, over the last 10 years at least.”

Binney said the information is being stored at various locations across the country.

Domestic Communication Isn't Safe From Surveillance

Moreover, the warrantless wiretapping program has apparently strayed well beyond its initial constraint that one end of the communication must include an international actor. A 2005 investigation by the New York Times revealed the program has, on many occasions, captured purely domestic conversations. At the time, the NSA claimed those recordings were accidental and caused by “technical glitches.”

However, a 2009 follow-up by the New York Times showed the NSA was still engaged in the “overcollection” of domestic communications, a problem the Justice Department told the newspaper it had taken steps to resolve.

And it’s not just the NSA. This month, the Wall Street Journal reported the little-known National Counterterrorism Center, or NCTC, in March was granted the authority to access almost any government database of U.S. civilian information to look for possible criminal implications. The new rules give the agency the right to copy entire government databases, which include financial information on individuals seeking federally backed mortgages, flight data, veterans' records, and even the names of Americans hosting foreign-exchange students, according to the Journal. The NCTC can reportedly hold data on innocent Americans for as long as five years.

If the Journal's report is accurate, then it proves the government is spying on Americans even outside the confines of the FISA amendments, said Michelle Richardson, a legislative counsel with the ACLU.

The Office of the Director of National Intelligence, overseer of the NCTC, would not comment on whether the agency monitors and stores information on innocent Americans.

Program Is So Secretive That It's Hard To Challenge In Court

The ACLU, along with a coalition of human-rights, legal, and media organizations, filed a lawsuit challenging the constitutionality of the FISA Amendments Act less than an hour after Bush signed it into law.

“Considering the kind of people who are being targeted, it’s not outlandish to think Americans (among those suing the government) could be caught up in recordings,” the ACLU's Richardson said. She explained that the plaintiffs work in professions that could involve communicating with foreign targets under surveillance outside the U.S.

In 2009, a U.S. District Court in New York dismissed the case, Amnesty v. Clapper, on the grounds that the ACLU could not definitely prove that plaintiff communications would be monitored under the new law. Richardson’s response: How could the ACLU provide evidence on this point when there is so little known about how the surveillance program actually functions?

In 2011, the 2nd U.S. Circuit Court of Appeals reversed the district court's ruling. The Obama administration then appealed the issue to the U.S. Supreme Court, which heard arguments this October. But those arguments did not get to the core of the issue -- whether the FISA amendments are a violation of Fourth Amendment protections -- but instead focused on whether the ACLU had the standing to pursue the challenge.

The EFF also has an active lawsuit, Jewel v. NSA, aimed at discovering how the warrantless wiretapping program works. The EFF’s Timm said that the descriptions law-enforcement authorities must provide the FISA court about the nature of the information or property related to overseas individuals that they are targeting for surveillance are so vague that it amounts to a big dragnet.

“The court orders under [the] FISA Amendments Act don't require 'probable cause' like normal warrants do, either,” EFF’s Timm said. “And instead of specifying individual people, the secret orders apply to groups of people -- potentially thousands at a time. This is known as a ‘general warrant’ and is exactly what the Fourth Amendment was written to prevent.”

The Obama administration moved to dismiss this case in 2009, again claiming that litigation would require the government to disclose privileged information about “state secrets.” The defense, as the EFF pointed out, relies on the idea that the surveillance program is, somehow, still a secret.

Unfortunately, Hope For Real Reform Lies With Congress

Because there is no way to know just how long these cases will take to make their way through the courts, Richardson said congressional action is the best hope for reforming FISA in the near future.

Senate Majority Leader Harry Reid, D-Nev., said this week he wants the FISA renewal considered, with a limited number of amendments, before Christmas.

Led by Sen. Ron Wyden, D-Ore., a handful of lawmakers including Democratic Sens. Jeff Merkley of Oregon, Jon Tester of Montana, and Mark Udall of Colorado are urging the Senate leadership to allow a meaningful debate on outstanding issues their proposed amendments are designed to address.

The suggested reforms appear to be relatively simple: Wyden’s office is proposing an amendment that would compel the NSA to give a ballpark estimate of how many Americans the agency snares while eavesdropping on foreign targets. Another Wyden provision would protect citizens against “backdoor searches,” which refers to cases when first Americans’ electronic communications are intercepted without warrant and then saved for future use in an NSA database.

In addition, an amendment proposed by Merkley -- based on a bill, the Protect Americans Privacy Act, that never made it out of committee -- would essentially unravel the original Bush administration wiretap program by preventing the NSA from intercepting American communications with foreign targets without a warrant. Merkley also wants the government to declassify opinions by the Foreign Intelligence Surveillance Court to reveal publicly how the court interprets the scope of the government’s surveillance laws.

It’s unclear whether any of these ideas will be voted upon, especially if the Senate decides to consider FISA amendments renewal in the next few days.

“We can agree that there is some information that should in fact be classified for the sake of national security,” said the ACLU's Richardson. “We’re not asking for names, we’re not even asking for exact numbers. We’re asking basic questions. We’re asking them to explain how this works. We’re asking them to tell us what kind of information they’re storing about us.”

But that, apparently, is as secret as the program that collected the information in the first place.